by Gary Taylor
Section 6409(a) of the Spectrum Act provides:
[A] state or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.
This post will focus on the FCC’s guidelines for the review of applications for collocation, modification, and replacement of wireless facilities. Again, the FCC ruling generally sided with the wireless industry with its permitting and timeline guidance.
Applications. The FCC ruling does permit local governments to require an application to allow local officials to determine whether the proposed facility changes are covered by Section 6409(a). The FCC found that nothing in 6409(a) indicates that local governments must approve requests merely because applicants claim they are covered. The ruling, however, prevents local governments from requiring any documentation beyond that needed to determine whether the request is covered by Section 6409(a); local governments may not require documentation “proving the need for the proposed modification or presenting the business case for it.”
Timelines. The FCC also established a “specific and absolute timeframe” for processing of requests under Section 6409(a): 60 days, including review to determine whether an application is complete. If an application has not been approved or denied within 60 days from the date of filing (with the exceptions noted below), the request will be deemed granted. The “deemed granted” becomes effective after the applicant notifies the local government in writing that the applicant is invoking this right.
The 60-day clock may be extended only (1) by mutual agreement between the local government and applicant, or (2) by a local government determination that the application is incomplete. Under (2), the local government must inform the applicant of the incompleteness within 30 days of the initial filing, and must clearly and specifically delineate in writing the missing information. The clock will resume when the information is provided, but may be tolled again if the local government notifies the applicant within 10 days that the application remains incomplete. This notification cannot contain requests for new information beyond what was previously requested.
Remedies. The FCC does not want to be the forum for resolving disputes over Section 6409(a), and therefore stated that “the most appropriate course for a party aggrieved by operation of Section 6409(a) is to seek relief from a court of competent jurisdiction.”
Non-application of 6409(a). Finally, the FCC determined that Section 6409(a) is meant to apply to local governments only when acting in their role as land use regulators. As such, Section 6409(a) does not apply when local governments are acting as property owners; when, for example, city or county governments are leasing space for the installation of wireless equipment on rooftops, water towers, power poles, or other government-owned property.
In the final blogpost (tomorrow) on this topic, I will cover the remaining sections of the FCC ruling that do not address Section 6409(a), but rather are meant to clarify the application of the shot clock that was affirmed by the US Supreme Court in 2013.